Copyhype

The question I’ve been asking in a series of recent posts is whether history can provide any insight into current claims that copyright law and the First Amendment conflict. As I noted, the Congress’s constitutional authority to secure exclusive rights to creators and the First Amendment’s prohibition on Congress making any laws abridging the freedom of speech and the press coexisted for nearly two centuries before any conflict between the two was suggested by scholars or considered by courts.

Surely there must be something to explain that two hundred years of near silence. And if we can explain it, we should be able to better understand how to approach current debates concerning the two areas of law.

I previously noted that copyright was primarily conceived as a property right in the 18th and 19th centuries, and invasions of property rights were not part of the freedom of the press. I also noted that before the First Amendment was ratified, a majority of the 13 original US states had passed copyright laws after providing for the freedom of the press, lending strength to the argument that the Framers conceived the two as wholly consistent.

As I’ve researched this question, I’ve realized more and more that one of the keys to understanding the history is understanding how people in the 18th and 19th centuries conceived “freedom of speech” and “freedom of the press.”

There’s a certain attraction to an absolutist First Amendment: “No law” means no law. ¹First Amendment absolutism was embraced by Supreme Court Justice Black in the mid-20th century but never accepted by courts. Today it is very much a minority view. But that position is not very helpful, since the Amendment doesn’t define “freedom of speech” or freedom of the press. If, on the one hand, “freedom of speech” means one can say anything at anytime without facing liability, then the FDA is acting unconstitutionally when it requires pharmaceutical companies to list side effects of the medication they sell. On the other hand, if “freedom of speech” means only the freedom to agree with the government, then Congress could enact all sorts of constitutional speech regulations. ²This example isn’t hyperbole. As debates over the constitutionality of the Alien and Sedition Acts of 1798 raged, newspaper editor Benjamin Russell wrote, in support of the law, that “it is patriotism to write in favor of our government — it is sedition to write against it.” In this sense, you could argue that everyone is a First Amendment absolutist, the disagreement is only over the meaning of “freedom of speech.” ³See Eugene Volokh, What Part of “Make No Law” Don’t I Understand? for more about this.

Freedom of the Press

“What is the liberty of the press?” asked Alexander Hamilton in the Federalist Papers, a question that best illustrates how the concept was perceived at the time.

Nowadays, it is perhaps most common to refer to the right of “free expression” as a combination of the rights of free speech and a free press. ⁴See, for example, Connick v. Myers, 461 US 138, 154 (1983); United States v. O’Brien, 391 US 367, 377 (1968); New York Times v. Sullivan, 376 US 254, 285 (1964). But when the First Amendment was adopted, freedom of press and speech were distinct enough to be mentioned separately. In a very broad sense, “freedom of the press” was the right to publish that which you had the right to speak — the liberty of the press was the expansion of the freedom of speech “by mechanical means,” as one 19th century author put it. ⁵James Paterson, The Liberty of the Press, Speech, and Public Worship, pg. 14, (London, 1880); See generally Eugene Volokh, “The Freedom … of the Press”, From 1791 to 1868 to Now — Freedom of the Press as an Industry, or the Press as a Technology? 160 University of Pennsylvania Law Review (2011). Far more debate at the time centered around the meaning of the freedom or liberty of the press than the freedom of speech.

The invention of the printing press allowed the dissemination of speech on a grand scale. As a result, it was soon strictly controlled by political and religious authorities. The idea of a press free from this control in England was influenced heavily by the writings of John Milton and became a reality after the Licensing Act of 1662, which prohibited any printing without a government license, finally expired in 1695.

A full discussion on what the liberty of the press meant after this time is beyond one blog post, so I’ll focus on the key points.

First, liberty of the press, at a minimum, meant that a government could not require prior approval for someone to publish a work. William Blackstone wrote that this liberty “consists in laying no previous restraints upon publications” though it does not forbid subsequent punishment for criminal matter. The reasoning for this was that the ability to subject the press to the power of a government censor or licensor “is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.” ⁶Commentaries on the Laws of England, Book 4, Ch. 11.

Thomas Paine wrote about the liberty of the press from an American perspective, explaining how the concept was a result of history:

Nothing is more common with printers, especially of newspapers, than the continual cry of the Liberty of the Press, as if because they are printers, they are to have more privileges than other people. As the term “Liberty of the Press” is adopted in this country without being understood, I will state the origin of it, and show what it means. The term comes from England, and the case was as follows:

Prior to what is in England called the revolution, which was in 1689, no work could be published in that country, without first obtaining the permission of an officer appointed by the government for inspecting works intended for publication. The same was the case in France, except that in France there were forty who were called censors, and in England there was but one, called Imprimateur.

At the revolution, the office of Imprimateur was abolished, and as works could then be published without first obtaining the permission of the government officer, the press was, in consequence of that abolition, said to be free, and it was from this circumstance that the term Liberty of the Press arose. The press, which is a tongue to the eye, was then put exactly in the case of the human tongue. A man does not ask liberty before hand to say something he has a mind to say, but he becomes answerable afterwards for the atrocities he may utter. In like manner, if a man makes the press utter atrocious things, he becomes as answerable for them as if he had uttered them by word of mouth. Mr. Jefferson has said in his inaugural speech, that “error of opinion might be tolerated, when reason was left free to combat it.” This is sound philosophy in cases of error. But there is a difference between error and licentiousness.

Some lawyers in defending their clients, for the generality of lawyers, like Swiss soldiers, will fight on either side, have often given their opinion of what they defined the liberty of the press to be. One said it was this, another said it was that, and so on, according to the case they were pleading. Now these men ought to have known that the term, liberty of the press, arose from a FACT, the abolition of the office of Imprimateur, and that opinion has nothing to do in the case. The term refers to the fact of printing free from prior restraint, and not at all to the matter printed, whether good or bad. The public at large, or in case of prosecution, a jury of the conntry, will be judges of the matter. ⁷The Political Writings of Thomas Paine Volume 2, pp. 464-65 (J.P. Mendum, ed. 1859).

This prohibition on prior restraints is at the core of the liberty of the press and the one aspect that everyone agrees on. ⁸See James Wilson, Pennsylvania Ratifying Convention, December 1, 1787: “What is meant by the liberty of the press is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character, and property of the individual.”; Respublica v. Oswald, 1 US 319 (1788); Henry Lee, Report of the Minority on the Virginia Resolutions, J. House of Delegates (Va.), 6:93-9522 January 22, 1799, “In fact the liberty of the press is a term which has a definite and appropriate signification, completely understood. It signifies a liberty to publish, free from previous restraint, any thing and every thing at the discretion of the printer only, but not the liberty of spreading with impunity false and scandalous slanders which may destroy the peace and mangle the reputation of an individual or of a community.”; Commonwealth v. Blanding, 3 Pick. 304 (Mass. 1825); “Besides, it is well understood, and received as a commentary on this provision for the liberty of the press, that it was intended to prevent all such previous restraints upon publications as had been practised by other governments, and in early times here, to stifle the efforts of patriots towards enlightening their fellow subjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.”; Joseph Story, Commentaries on the Constitution of the United States, 1833: “That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man. … the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his rights, person, property, or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government. It is neither more nor less, than an expansion of the great doctrine, recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends.”; Patterson v. Colorado, 205 US 454, 462 (1907). What the liberty of the press means beyond that, however, was subject to great debate.

Second, this debate over the nature of the freedom of the press beyond the prohibition on prior restraints revolved largely around libel: whether defamatory, seditious, blasphemous, or obscene. ⁹See Henry Schofield, 2 Essays on Constitutional Law and Equity 514-29 (1921). Could government punish political criticism? Was truth a defense to published statements that injured an individual’s reputation? ¹⁰See Eugene Volokh, The Original Meaning of the Free Speech/Press Clause, Sept. 15, 2008. A great deal of these debates was spurred by the passage of the Alien and Sedition Acts in 1798, which would be the most significant event in free speech history until the espionage and sedition acts passed during World War I (acts which served as the genesis for modern First Amendment jurisprudence). ¹¹See Steven G. Gey, The Brandenburg Paradigm and Other First Amendments, 12 Journal of Constitutional Law 971, 975 (2010).

Copyright rarely entered in any of these debates, and when it did, it only did so peripherally. When Pennsylvania was discussing the ratification of the US Constitution in 1787, for example, one delegate raised the concern that, without a federal bill of rights protecting the liberty of the press, Congress might use its power to secure exclusive rights to authors not to pass a copyright law but to return to a general system of press licensing. ¹²“Tho’ it is not declared that Congress have a power to destroy the liberty of the press; yet, in effect, they will have it. For they will have the powers of self-preservation. They have a power to secure to authors the right of their writings. Under this, they may license the press no doubt; and under licensing the press, they may suppress it.” Robert Whitehill, remarks of December 1, 1787, in Pennsylvania and the Federal Constitution 1787-1788, pg 771.

But there is enough evidence to suggest that copyright law was generally — and noncontroversially — conceived of as completely outside the scope of the liberty of the press. Enjoining or restraining the publication of infringing material was a permissible prior restraint.

A Permissible Prior Restraint

The shared history of the liberty of the press and copyright law reinforces this idea.

As mentioned above, William Blackstone described the liberty of the press as “laying no previous restraints upon publications.” But elsewhere, he recognized that English courts frequently enjoined publications that infringed on copyright.

In the United States following the Revolutionary War, liberties were jealously guarded by the states. Yet six of the twelve pre-Constitution state copyright acts — Connecticut, Georgia, Maryland, New York, North Carolina, and South Carolina — explicitly gave the author of a work “the sole liberty of printing, reprinting, and vending” that work, suggesting that protection of copyright was compatible with the goals of a free press.

James Iredell, one of the first Supreme Court Justices of the United States, wrote in 1788 while the Constitution was undergoing ratification:

The liberty of the press is always a grand topic for declamation, but the future Congress will have no other authority over this than to secure to authors for a limited time an exclusive privilege of publishing their works. This authority has been long exercised in England, where the press is as free as among ourselves or in any country in the world; and surely such an encouragement to genius is no restraint on the liberty of the press, since men are allowed to publish what they please of their own, and so far as this may be deemed a restraint upon others it is certainly a reasonable one. [Emphasis added.] ¹³Answers to Mr. Mason’s Objections to the New Constitution Recommended by the Late Convention at Philadelphia, in Pamphlets on the Constitution of the United States, pg. 361.

As noted earlier, the Alien and Sedition Acts of 1798 triggered sharp debate over the liberty of the press. At times, copyright law was used to illustrate how that liberty was a delimited one:

When religion is concerned, Congress shall make no law respecting the subject: when the freedom of the press is concerned, Congress shall make no law abridging its freedom; but they may make any laws on the subject which do not abridge its freedom. And in fact, the eighth section of the first article of the Constitution authorizes them in express terms “to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.” Now if Congress could not make any laws respecting the freedom of the press, they could not secure for limited times to authors their respective writings, by prohibiting those writings from being published and vended, except by those whom the authors should expressly permit. ¹⁴Remarks of George Taylor, December 21, 1798, The Virginia Report of 1799-1900, Touching the Alien and Sedition Laws; Together with the Virginia Resolutions of December 21, 1798, pg. 136.

Louisiana, which became a state in 1812, enacted a comprehensive code of laws in 1825. The Code was largely the result of efforts by appointed Edward Livingston, a former member of the US House of Representatives and opponent of the Alien and Sedition Acts, to devise a comprehensive criminal code for the state. Though never enacted, the importance of the Code shouldn’t be underestimated. ¹⁵Stuart P. Green, The Louisiana Criminal Code: Ten Proposals for Reform, 2002.

The Code is notable for including a section on “Offenses against the liberty of the press.” As Livingston explained in a preliminary report for the code:

It has generally been thought a sufficient protection to declare, that no punishment should be inflicted on those who legally exercise the right of publishing; but hitherto no penalties have been denounced against those who illegally abridge this liberty. Constitutional provisions are, in our republics, universally introduced to assert the right, but no sanction is given to the law. Yet do not the soundest principles require it? If the liberty of publishing be a right, is it sufficient to say that no one shall be punished for exercising it? I have a right to possess my property, yet the law does not confine itself to a declaration that I shall not be punished for using it; something more is done; and it is fenced round with penalties, imposed on those who deprive me of its enjoyment.

The Lousiana Code of 1825 made it a misdemeanor for anyone to use violence, threats, or other means to prevent a person from exercising their freedom of speech or the press. The only exception for this was the filing of a lawsuit for libel or copyright infringement.

The law also made it against the law for a judge to enjoin, restrain, or prevent the publication of any writing, punishable by a fine ranging from $500-1000 (in 1825 dollars) and a two year suspension. There was only one exception to this:

It is no infringement of the last article to grant an injunction against the publication of any literary work, on the application of a person who shall satisfy the court or judge granting the injunction, that he is the author or proprietor of the work intended to be published, and that the publication will be injurious to his rights.

Similar provisions were nearly adopted by the US Congress itself, though not for the country as a whole.

The District of Columbia was established as the capitol of the United States shortly after the Constitution was adopted and placed under the exclusive control of the federal government. For decades, efforts were made to codify the civil and criminal laws that governed the District. ¹⁶Justice Walter S. Cox, Efforts to Obtain a Code of Laws for the District of Columbia, 1898.

One such effort led to a proposed system of laws that was reported in a joint committee of Congress in February of 1832. This code was heavily influenced by Livingston’s Louisiana code; the provisions for offenses against the liberty of the press were imported word for word. The District of Columbia, however, declined to adopt the proposed code.

The idea of copyright as a restraint congruous with the liberty of the press continued throughout the 20th century.

For example, the following is taken from the Columbia Law Review in 1917:

In general, so highly has freedom of speech and of the press been held that, regardless of subsequent punishment, no censorship before publication has been tolerated, and, in consequence, to this day, courts will neither enjoin publications nor allow interference with them, except in the special case where written utterances are a part of a conspiracy to injure property … Similarly, the infringement of a copyright has been enjoined. ¹⁷Constitutional Protection of the Right of Freedom of Speech and of the Press 17 Columbia Law Review 622-24 (Nov. 1917).

And this is from the Supreme Court in 1971:

The Congress has authorized a strain of prior restraints against private parties in certain instances … Article I, § 8, of the Constitution authorizes Congress to secure the “exclusive right” of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another. ¹⁸New York Times v. United States, 403 US 713, 731 n.1 (1971)(J. White dissent).

So it would seem that throughout the history of copyright, protection of an author’s exclusive rights was not seen as offensive to the freedom of the press.